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9.25.2012

Shortly after a Moscow court sentenced the three female rock
musicians from Pussy Riot to two years in a penal colony for
‘hooliganism,’ the United States Embassy in Russia sent off the
following disapproving tweet: "Today's verdict in the Pussy Riot case
looks disproportionate.”

While any official criticism of this latest Muscovite miscarriage of justice is likely deserving of praise; it is unfortunate that by focusing on the
proportionality of the sentence itself, as oppose to the Kafkaesque
nature of the trial leading up to it, attention may be drawn away from
what should be the primary takeaway - the sorry state of rule of law in
Russia today.

Proportionality and legality are very different animals. A
punishment can be draconian while remaining legally legitimate, or else
be comparatively light and yet constitute a train wreck as regards
procedural fairness, constitutionality and due process considerations.
In determining what is proportional people rely on a series of
subjective assumptions and value judgments through which to gauge the
severity of crimes relative to punishments, and perspectives are likely
to vary greatly between different cultures, legal traditions and
generations. In contrast, legality stems from a government’s ability to
fairly apply its own rules to a given situation, drawing upon numerous
human rights treaties, international protocols and codified norms as to
what such fair application should resemble in practice.

In 1994, an American teenager named Michael Fay was convicted of
vandalism in Singapore and sentenced to be caned: a particularly cruel
type of corporal punishment that often leaves permanent scars and
requires subsequent medical attention. Following the verdict, Ralph
Boyce, a spokesman for the United States Embassy criticized the sentence
for its "large discrepancy between the offense and the punishment.”

While the Embassy statements may seem to echo one another, the cases
themselves could not be more different. Singapore’s judicial system,
despite its harsh punishments, consistently ranks among the top five
countries in the world as regards transparency, judicial independence,
and procedural adherence to formality according to the Global
Competiveness Index and the World Justice Report. Likewise Fay had
committed a clearly defined and apolitical crime where tangible, albeit
minor, damage to property had occurred. As such, criticism of Fay’s
sentencing (eventually reduced from six strikes to four in the name of
international goodwill) had to be based on ‘proportionality’ because the
Singapore court’s application of its own laws as written was
essentially beyond reproach.

This 'harsh but fair' characterization cannot be applied Russia however,
and the trial of the three musicians constituted a veritable parade of
rights violations and legal impropriety.

The offense itself involved an incident in February of this year
when Pussy Riot gave a ‘spontaneous’ performance upon the altar of the
Cathedral of Christ the Savior in Moscow. Mimicking a traditional
Russian Orthodox religious liturgy, liberally peppered with curse words
and insults towards the Russian Patriarch, the display was apparently
motivated by band concerns regarding Putin’s reelection and his regime’s
close relationship to Church authorities despite the constitution’s
mandated separation between the state and organized religion.

Freedom of speech and expression are constitutionally protected by
Article 29 of Russia’s 1993 Constitution, except in cases where
“propaganda or campaigning” incite “social, racial, national or
religious hatred and strife.” Whether the band’s theatrics can be
rightfully considered to be propaganda or campaigning and, if so,
whether that behavior was tantamount to “inciting” hatred (thus
excepting it from constitutional protection) should have been a bit of a
stretch although the court clearly found otherwise.

Blasphemy itself is not criminalized under Russian law there was a
readily applicable statute under which the band could have been
prosecuted for creating an offensive and inappropriate public
disturbance. The potential penalties for conviction on these charges,
fines and community service, were themselves deemed disproportionate by
prosecutors for application to critics the regime however, and the band
members were charged under Article 213.2 of the Russian Criminal Code: a
prohibition of extremist attacks against religious or ethnic groups.

While, under the statute, such “hooliganism” is punishable by up to
seven years in prison, the law itself is clearly worded so to apply only
to crimes involving ”vandalism, material damage, or personal injury.”
As none of these necessary conditions had been met, Judge Marina Syrova
accepted a rather spurious argument that since prayers in a Russian
Cathedral may only be given by an ordained priest, the violation of
canonical prohibitions against lay prayers constituted a defacement of
church protocol, and were thus sufficient for render the spectacle
analogous to physical vandalism or assault.

The conviction of the Pussy Riot band-members for what should have
been a protected, if distasteful, display of artistic political
dissidence required a staggering degree of departure from the stated
norms of the Russian legal system. This subjugation of judicial process
to the whims and vendettas of the governing regime would be deeply
troubling under any circumstances but is particularly so given the
proclivity for political farce and sham trials under the former Soviet
Union.

In our age of cell phone cameras, bloggers, international human
rights watchdogs and globalization, autocrats are reinventing themselves
for the 21st Century in the hopes of being able to garner legitimacy
while at once maintaining control. To do so they are applying ever more
complex legal veneers and artful justifications to disguise what is otherwise
blatant dissident suppression. And, unfortunately for the Russian people,
when it comes to these sorts of sleight-of-hand Vladimir Putin is a master.